Miranda-Maltez v. Holder

FILED
NOT FOR PUBLICATION MAR 02 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY JAVIER MIRANDA-MALTEZ, No. 07-71863
Petitioner, Agency No. A041-985-410
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2012**
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN,
Senior District Judge.***
Henry Javier Miranda-Maltez (“Miranda”) petitions for review of a Board of
Immigration Appeals (“BIA”) decision finding him removable under INA §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Alvin K. Hellerstein, Senior United States District
Judge for the Southern District of New York, sitting by designation.
237(a)(2)(B)(i) for having been convicted in 2000 of transportation of marijuana in
violation of California Health & Safety Code (“CH&SC”) § 11360(a). Miranda
argues that the BIA erred in finding that the Department of Homeland Security
(“DHS”) proved his removability by clear and convincing evidence because the
DHS failed to prove his offense was not “a single offense involving possession for
one’s own use of 30 grams or less of marijuana.” See INA § 237(a)(2)(B)(i).
Miranda also argues that his 2000 conviction for transportation of marijuana is
invalid for immigration purposes under Lujan-Armendariz v. INS, 222 F.3d 728(9th Cir. 2000), overruled by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011)
(en banc).
Miranda’s first argument fails because the record of conviction shows
Miranda was charged and pled nolo contendere to transporting marijuana rather
than possessing it, giving it away, or doing something else with it. Transportation
of marijuana is not “a single offense involving possession for one’s own use of 30
grams or less of marijuana.” See INA § 237(a)(2)(B)(i). Transportation and
possession of marijuana are separately delineated offenses under California law,
and possession for one’s own use is not an essential element of transportation.
Compare CH&SC § 11357, with CH&SC § 11360; see also People v. Rogers, 486
P.2d 129, 131 (Cal. 1971).
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Miranda’s second argument fails because transportation of a controlled
substance is not an equivalent or lesser offense than simple possession. Prior to
Nunez-Reyes, the law in this circuit provided that:
a state conviction cannot be used for immigration purposes if the alien can
show that (1) the conviction was his first offense; (2) he had not previously
been accorded first offender treatment; (3) his conviction was for possession
of drugs, or an equivalent or lesser charge such as possession of drug
paraphernalia; and (4) he received relief under a state rehabilitative statute.1
Rice v. Holder, 597 F.3d 952, 956 (9th Cir. 2010) (internal quotation marks,
emphasis, punctuation, and citation omitted), overruled by Nunez-Reyes, 646 F.3d
684. Nunez-Reyes overruled this law prospectively but left it intact according to its
terms for aliens, like Miranda, who were convicted prior to the decision’s
publication date. See Nunez-Reyes, 646 F.3d at 694. However, Nunez-Reyes
retroactively overruled Rice’s holding that the offense of being under the influence
of a controlled substance is a lesser offense than simple possession. Nunez-Reyes,
646 F.3d at 695 n.7. The en banc Court in Nunez-Reyes distinguished Rice from
earlier cases such as Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir. 2009),
1
During his removal proceedings, Miranda’s conviction of transportation of
marijuana was expunged by the State court, a form of “relief under a state
rehabilitative statute.” See Rice v. Holder, 597 F.3d at 956. Expungement alone,
where the alien was convicted of a crime more serious than possession of drugs or
an equivalent or lesser charge, does not qualify the alien for relief from an Order of
Removal. Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002).
3
Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000), and Lujan-Armendariz,
222 F.3d 728, noting that in the earlier cases “it was clear that the conviction was
for a ‘lesser offense’ because the alien was convicted of a single crime that carried
a lesser penalty than the crime of simple possession.” Nunez-Reyes, 646 F.3d at
695. “Being under the influence is not a lesser offense to simple possession,” we
reasoned, “because it arguably is more serious than mere possession” in that it
“alters one’s sober state of mind and carries an immediate risk of dangerous
behavior, which mere possession does not necessarily create.” Id.At the least, transportation of a controlled substance “arguably is more
serious than mere possession.” See id. Transportation of marijuana under CH&SC
§ 11360(a) carries a punishment of imprisonment for two, three, or four years,
whereas possession of marijuana under CH&SC § 11357(b) or (c) is punished by a
fine of not more than $100 (§ 11357(b)), or six months in county jail and/or a fine
of not more than $500 (§ 11357(c)). Furthermore, transportation of marijuana
carries risks not created by mere possession, such as the risk that use of drugs in
vehicles will cause traffic hazards and accidents. See Rogers, 486 P.2d at 133.
Miranda’s Petition for Review is DENIED.
4